Why Indie Authors Need Literary Executors & How to Appoint One

Following Karen Myers’ recent post about estate planning for author-entrepreneurs, Maggie Lynch addresses the issue of appointing a literary executive for individual indie authors, as part of our occasional series on different aspects of running an author business.

Please note Maggie Lynch is not a lawyer and is sharing a personal account of her own experience rather than formal legal advice.

Karen Myers’ earlier post provided interesting ideas about giving intellectual property to a micro-publisher. Today I’m going to address how to make sure your heirs (whether that is family, friends, or a nonprofit) benefit from that and who makes the decisions about licensing future intellectual property rights (eg translations, movie or TV deals, audiobooks, etc.) that may not have been licensed at the time of your death.

Whenever I think of future licensing, I am reminded of other authors who were not bestsellers or well-known during their life, such as Phillip K Dick, whose novels and short stories were later made into movies for cinema or TV.

Why I’ve Appointed a Literary Executor

In my will, I’ve assigned a literary executor who is separate from the primary executor of my estate.

The reason for that is that my primary executor (son), though an attorney, knows only the basics about intellectual property and how to exploit it (two courses in law school). His specialty is not in IP. Furthermore, both my children have little interest in learning right now. They have their own lives and children, are growing their own careers, and lots of other things that 30-somethings with a family typically have on their plate right now.

By having a person I trust to be the literary executor – someone who not only understands but is good at licensing and exploitation of rights and/or knows who to partner with to do that – I am confident that the IP I have will be well-tended. In the will she receives a percentage of the profits for her work and the remainder is equally distributed to the children. (Conventional executors who operate for an indefinite period receive payment, too.)

Recommended reading to help you appoint a literary executor

A layman’s book I found very helpful for starting my planning is ML Buchmann’s Estate Planning for Authors. It begins with the concept of your “final letter” to your family which outlines everything you need them to know, including:

your inventory of products

current distribution partners

other business partners (editors, cover designers, web designers)

access to online accounts the appointment of a literary executor and their relationship to the family

Of course, the actual final will is then vetted by an attorney to make sure it meets state and federal requirements to stand up in court should someone contest the will.

Why All Authors Should Do This

Further reading about rights: available in paperback and ebook – with free download for ALLi members

This is VERY important for all authors to do. Even if you don’t do everything I did right now, you should at least have that final letter so your heirs have a clue what this crazy writing business is about and what intellectual property you have left behind.

If appointing another micro-publisher as your literary executor, as Karen Myers suggested, as a vehicle for maximizing royalties for the heirs, you would want to vet the capabilities of the micro-publisher as well. Some publishers know a lot about the complicated business of being an indie author and running an author business, while others do not.

OVER TO YOU If you’ve made plans for your literary estate after your death, do you have any top tips to share? We’d love to hear them!

About Maggie Lynch

Maggie Lynch is the author of 20+ published books, as well as numerous short stories and non-fiction articles. Her fiction tells stories of men and women making heroic choices one messy moment at a time. Her novels include series in contemporary romance and romantic suspense, as well as fantasy and science fiction. Her recent nonfiction focuses on helping indie authors be successful in their careers.
Maggie and her husband live in the Pacific Northwest, and are the slaves of two rescue cats. After a 40-year career that spanned computer science, counseling and academia, in 2013 Maggie chose to devote her time to her career as a full time author. You can learn more about her at maggielynch.com.

This is an important topic. I know there are artists and writers that die before they earn anything, such as Van Gogh. Or artists that have made tons and died with no will, like Prince. I think maybe he did that because he did a lot to earn the money and now he says to his relatives that they need to work to get to keep it. If my writing were to earn anything after my passing (because not much has been earned before so far), I do have certain places I would like it to go. So I might actually check into this.

Where a power of attorney is in place there needs to be an entry in the will for executor of royalties beyond death. This obviously should be in place within the will before death of author or power of attorney becoming active. Author needs to make clear in his/her will how royalties are to be distributed, but also executive role for family with regard to copy wright. Where ownership remains in the family there could be disagreement as to whether or to whom should gain from book sales/ or possible sale of copy wright. Quick financial gain is often a main prerogative for family legatees. There is no clear way around that of including direct authority to executors of author’s will for disposal or non disposal of copy right etc… – continued book sale revenue /royalty distribution. A lawyer who specializes in copy wright/royalty rights after death for legatees would advise. At a price, of course.

The only way I envision anyone being willing to continue a self-publishing business inherited from a deceased author, even a cherished relation, is if the beneficiary smells significant reward. If there’s potential post-mortem profit—preferably ‘easier,’ like basic royalties, rather than dependent on new effort—then that’s the carrot to dangle. It’s cruel enough to appoint someone this gig, but expecting them to both learn and do all that work then divvy up the proceeds is crueler still. I think long talks with key relatives (with writer tendencies?) or another appropriate author, well before any naming in a will, would be a start for finding out if there’s any remote hope for an orphaned self-pub empire. The good news is that, in the likely event it crashes and burns, we probably won’t be that crushed from wherever we’re looking down (or up) from. Personally, I’d like by then to have trained a newbie or two to publish similarly to my methods. Then when I keel over, they can just continue selling my books in tandem with their own and pocket those extra millions. Incentive is everything!!

In the trad publishing world, the literary executor takes the place of the author vs the author’s partners (agents, publishers). In principle, the literary executor doesn’t need to know much more than the author to represent the author’s interests.

In the indie publishing world, a conventional literary executor is unlikely to be able to also take the place of the author-publisher, since that role is much more elaborate and less contained than the role of a traditional author. While such a person may exist, I have to wonder who they could be, other than other indie-publishers (in order to have acquired the necessary skills). This is why I envision a roll-up into other micro-publishers.

That said, it doesn’t absolve the proposed micro-publisher partner from the duties and responsibilities of a literary executor.

Perhaps we should think of our literary executor’s responsibilities as finding (or confirming already drafted relationships for) an appropriate micro-publisher successor and monitoring the relationship and its results. This puts the literary executor’s skill sets less on representing the author-publisher’s interests, and more on representing the author’s interests, leaving the publishing portion to the execution of the micro-publisher roll-up partner’s skills and monitoring the fiduciary results primarily instead.

In a non-publishing small business, there’s often a specialty executor for the business part of the estate, a person who has sufficient skills to either continue or to sell the small business. That person may well be separate from the person who ends up owning or running that small business.

We may leave our antique store to our grandson who has no knowledge of the business, but we put someone in charge in our will to make that transition possible, including defining interim or permanent alternate management. I don’t see our indie-publishing businesses any differently: someone in charge as an executor, and someone to make the business continue. They’re probably not the same person.